Rethinking Cultural Genocide Under International Law

Human Rights Dialogue: "Cultural Rights" (Spring 2005)

“Genocide” is an amalgam of the Greek genos (race or tribe) and the Latin
cide (killing), speaking literally to the destruction of a group. The term was
conceived in 1944 by Raphael Lemkin, a Polish law professor who narrowly escaped
the Nazi occupation of his homeland. In Axis Rule in Occupied Europe, a seminal text on Nazi
race policy, Lemkin noted that genocide signifies:

a coordinated plan of different actions aiming at the
destruction of essential foundations of the life of national groups, with the
aim of annihilating the groups themselves. The objectives of such a plan would
be disintegration of the political and social institutions, of culture,
language, national feelings, religion, and the economic existence of national
groups, and the destruction of the personal security, liberty, health, dignity,
and even the lives of the individuals belonging to such groups. Genocide is
directed against the national group as an entity, and the actions involved are
directed against individuals, not in their individual capacity, but as members
of the national group.

Lemkin described eight
dimensions of genocide—political, social, cultural, economic, biological,
physical, religious, and moral—each targeting a different aspect of a group’s
existence. Of these, the most commonly recognized are physical, biological, and
cultural. Physical genocide is the tangible annihilation of the group by killing
and maiming its members, either directly or through what the International Criminal Tribunal for Rwanda
recognized as “slow death” techniques such as concentration camps. Biological
genocide consists of imposing measures calculated to decrease the reproductive
capacity of the group, such as involuntary sterilization or forced segregation
of the sexes.

Cultural genocide extends beyond attacks upon the physical and/or biological
elements of a group and seeks to eliminate its wider institutions. This is done
in a variety of ways, and often includes the abolition of a group’s language,
restrictions upon its traditional practices and ways, the destruction of
religious institutions and objects, the persecution of clergy members, and
attacks on academics and intellectuals. Elements of cultural genocide are
manifested when artistic, literary, and cultural activities are restricted or
outlawed and when national treasures, libraries, archives, museums, artifacts,
and art galleries are destroyed or confiscated.

The 1948 Convention
on the Prevention and Punishment of the Crime of Genocide prohibits physical
and biological genocide but makes no mention of cultural genocide. This omission
was deliberate. Early drafts of the Genocide Convention directly prohibited
cultural genocide. As the treaty was finalized, however, a debate emerged over
its proper scope. Many state representatives drafting the treaty understood
cultural genocide to be analytically distinct, with one arguing forcefully that
it defied both logic and proportion “to include in the same convention both mass
murders in gas chambers and the closing of libraries.” Others agreed with
Lemkin’s broader initial conception that a group could be effectively destroyed
by an attack on its cultural institutions, even without the physical/biological
obliteration of its members.

Cultural genocide ultimately was excluded from the final Convention, except
for a limited prohibition on the forcible transfer of a group’s children. The
drafters acknowledged that the removal of children was physically and
biologically destructive but further recognized that indoctrinating children
into the customs,language, and values of a foreign group was “tantamount to the
destruction of the [child’s] group, whose future depended on that next
generation.”

Despite the limited definition of the offense itself, broader cultural
considerations do still play two important roles in prosecuting genocide under
the Convention. First, acts of cultural genocide—conduct violating what the International Criminal Tribunal for the Former
Yugoslavia (ICTY) referred to as the “very foundation of the group”—tend to
establish the genocidist’s specific intent to destroy the protected group. The
ICTY, for example, held that Serbian destruction of Muslim libraries and mosques
and attacks on cultural leaders established genocidal intent against Muslims in
the former Yugoslavia.

Second, cultural characteristics are used to help define the contours of the
protected groups enumerated in the Convention. Since there are no universally
accepted definitions of racial, ethnic, religious, or national groups, each must
be assessed on a case-by-case basis in light of unique historical and contextual
considerations. Cultural concerns, such as a group’s social, historical, and
linguistic characteristics, help to determine whether a given group of people is
protected under the Convention.

Without denigrating the importance of such developments, it nevertheless is
important to recognize their limitations. Human rights treaties (and their
concomitant compliance and adjudicatory mechanisms) depend upon the voluntary
and good faith participation of states party to the instruments themselves.
Adjudicated violations (including those amounting to cultural genocide) create
at most an obligation to desist from the offending practice and to pay
compensation. The responsible parties are states, and there is no recognition of
individual civil or criminal responsibility for the conduct at issue. Those most
likely to commit cultural genocide are least likely to participate in any
voluntary human rights scheme.

Human rights jurisprudence lacks sufficient flexibility to properly redress
cultural genocide, which differs from other infringements upon cultural rights
in both scope and substance. The existing human rights scheme redresses the
intentional and systematic eradication of a group’s cultural existence (for
example, destroying original historical texts or prohibiting all use of a
language) with the same mechanisms as it would consider the redaction of an art
textbook. But cultural genocide is far more sinister. In such cases, fundamental
aspects of a group’s unique cultural existence are attacked with the aim of
destroying the group, thereby rendering the group itself (apart from its
members) an equal object and victim of the attack. The existing rubric of human
rights law fails to recognize and account for these important differences.

Collective identity is not self-evident but derives from the numerous,
inter-dependent aspects of a group’s existence. Lemkin’s original conception of
genocide expressly recognized that a group could be destroyed by attacking any
of these unique aspects. By limiting genocide to its physical and biological
manifestations, a group can be kept physically and biologically intact even as
its collective identity suffers in a fundamental and irremediable manner. Put
another way, the present understanding of genocide preserves the body of the
group but allows its very soul to be destroyed.

This is hardly a satisfactory situation, and it is time to revisit the issue
put aside by the Convention’s drafters through a new treaty dealing specifically
with cultural genocide. These efforts should be preceded by a comprehensive
analysis of state practice and opinio juris to ascertain the current
status of cultural genocide under customary international law. The need is
patent. Cultural genocide is a unique wrong that should be recognized
independently and that rises to the level of meriting individual criminal
responsibility. After all, if indeed the highest values of a society are
expressed through its criminal laws, what message is being conveyed by not
labeling acts of cultural genocide as criminal? Perhaps a message better left
unsent.

Tags

The views and opinions expressed in the media, comments, or publications on this website are those of the speakers or authors and do not necessarily reflect or represent the views and opinions held by Carnegie Council.